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Chicago's First Great Lawsuit 

By Eugene E. Prussing 




The State Historical Society of Wisconsin 

Separate No. 168 

From the Proceedings of the Society for 1915 






Chicago's First Great Lawsuit 



By Eugene E. Prussing 

The case, the story of which is told in the following pages, 
may not have been Chicago's first lawsuit, but it probably was 
Chicago's first great lawsuit. It is entitled Forsyth et al. v. 
Nash and was begun in the court of the parish and city of New 
Orleans where it was decided in favor of the plaintiffs. It was 
then appealed to the Supreme Court of Louisiana in and for 
the Eastern District and there disposed of in June, 1816, in favor 
of the defendant. 1 

The case of Forsyth et al. v. Nash has two claims to importance, 
aside from the immediate question whether or not Jeffrey. Nash, 
a negro, should be returned to the plaintiffs as a runaway slave. 

In the first place it set the seal of condemnation upon the 
reputation of the plaintiffs, one of whom was John Kinzie, the 
reputed "father of Chicago" and the other, his partner and 
kinsman, Thomas Forsyth, not because it disclosed that they 
claimed to be slaveholders, for there were many such in Illinois 
Territory at that time, including the governor, Ninian Edwards, 
but that they sought to hold Nash as a slave by virtue of a forged 
bill of sale, void, it is true, under the law, but none the less a fraud. 

Secondly, it involved the questions, there necessarily and 
rightly decided by the Court, which the Supreme Court of the 

1 For the report of the case, see 4 Martin's Reports (Old Series) 385 (Louis- 
iana). See also on the same general subject Century Edition of The American 
Digest (St. Paul, 1903), 44, 1095-1111. The historical aspects of the case have 
been treated by M. M. Quaife, Chicago and the Old Northwest, 1673-1835 (Chi- 
cago, 1913). 150-52. The paper here printed was originally read by the author 
before the Chicago Literary Club on the evening of Nov. 16, 1914. As delivered 
it included the citation from Quaife, which has been excised from the paper 
as here printed. 

[124] 



D. of D. 
JUN 5 1916 



Chicago's First Great Lawsuit 

United States is said unnecessarily and wrongly to have decided 
in the famous Dred Scott case forty years later. 2 The latter 
also affirmed that a black man could not raise the question of his 
right to freedom in the federal courts, because he was not a citizen 
of the United States, and could not sue in its courts. 

If these claims to distinction are sustained, the case may 
fairly be described as a great one. The immediate facts con- 
cerning the transaction to which it owed its origin are succinctly 
stated in the following extract: 3 

On May 22, 1804, articles of indenture were entered into which bound Jeffrey 
Nash, a "Negro man", to serve John Kinzie and Thomas Forsyth, "Merchants 
of Chicago," for the term of seven years. The instrument describes Nash as 
an inhabitant of Wayne County, although it was executed, apparently, at 
Chicago. The Chicago of 1804 was located in Wayne County, Indiana Terri- 
tory, whose county seat was Detroit, over three hundred miles away. In 
return for meat, drink, apparel, washing, and lodging "fitting for a servant," 
Nash bound himself to the maintenance of an utterly impossible standard of 
conduct. Doubtless the quaint language of the indenture simply followed 
the customary form of such documents; it can scarcely have been expected 
that the bound man would live up to its numerous stipulations. 

Nash signed the instrument by making his mark. It might reasonably be 
concluded, even in the absence of other information concerning him, that this 
indenture practically reduced him to slavery. That Kinzie and Forsyth chose 
to so regard Nash's status is shown by their treatment of him. He was taken 
to Peoria, Forsyth's place of residence from 1802 until 1812, and for many 
years held by the latter as a slave. At length he ran away from his bondage 
and made his way to St. Louis, and eventually to New Orleans, where he was 
said to have had a wife and children. Forsyth and Kinzie sought to recover 
possession of him and to this end a suit was instituted in the parish court: the 
case went ultimately to the Supreme Court of Louisiana, where an interesting 
decision was rendered. 

The document which Kinzie and Forsyth and Nash signed and 
witnessed purports to have been executed "Enterchangebly" 
by the parties, but Nash probably never had a copy, this phrase 
being like many others, merely a legal fiction. Fortunately, the 
document has been preserved, 4 and it is thus possible to print it 
here: 

This Indenture Witnesseth that Jeffre Nash (Negro man) of the County 
of Wayne hath put himself servant and by these presence doth bind himself 

2 Dred Scott v. Sandford, 19 Howard Reports 393. 

3 Quaife, Chicago and the Old Northwest, 150, 151. 

4 The document is one of the Forsyth papers in the Draper Collection (1T1) 
of the Wisconsin Historical Society. 

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voluntarily as a servant to Mess rs . Kinzie & Forsyth Merchants of Chicago 
to serve said Kinzie & Forsyth their heirs or assigns after the manner of a 
servant to serve from the day of the date hereof for and dureing the full Term 
of seven Years next ensuing dureing all which time he the said servant his said 
Masters shall faithfully serve their Secrets keep their lawfully Command every 
where gladly Obey — he shall do no damage to his said Masters He shall not 
wast his Master's goods nor lend them unlawfully to others He shall not 
commit Fornication nor contract Matrimony within said Term, At dice Cards 
or any unlawfull game he shall not play whereby his said Masters may be dam- 
aged with his own goods or the goods of others dureing the said Term without 
licence of his said Masters he shall neither buy nor sell he shall not absent day 
nor Night from his said Masters service without their leave nor haunt Taverans 
or any plase or places without permission From said Masters but in all things 
behave himself as a faithfull Servant ought to do dureing the said Term and 
the said Masters shall provide for him the said Servant sufficient meat drink 
apparal washing and Lodgings fitting for a servant dureing said Term and for 
the true performance of all and every the said Covenants and agreements 
Either of the said parties bind themselves unto the other by these presents, — 
In Witness whereof the[y] have Enterchangebly put their hands and seals 
this twenty second day of May in the Year of our Lord one Thousand Eight 
hundred and four. 
Signed sealed and delivered 

in presence of Us Kinzie & Forsyth 

James Forsyth his 

John Lalime Jeffre -j" Nash 

Witnessfesl mark 

Endorsed: Jeffry Nash Indenture 1804 

The continuation of the story of the relations of Nash and his 
masters is found in the report already referred to, of the decision of 
the Supreme Court of Louisiana in the case of Forsyth et al. v. 
Nash. The marginal digest of the decision reported reads: 

A negro will be presumed free, tho' purchased as a slave, if the purchase was 
made in a country in which slavery is not tolerated, unless it be shewn that 
he was before in one, in which it is. 

The decision itself is reported in the following language: 

Appeal from the court of the parish and city of New Orleans. 

Martin, J. delivered the opinion of the court. The plaintiffs in this case 

claim the defendant, a negro man, as their slave. It therefore behooves them 

to show slavery in him and property in them.* 

The evidence adduced for this purpose is: 

1, A bill of sale by which the defendant was sold to them "to have and to 
hold the said negro man, and to dispose of him, as they shall think proper." 

*But see Trudeau's Ex's vs. Robinette, January term 1817. 

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Chicago's First Great Lawsuit 



This instrument, bearing date the 5th of September, 1803, was executed at 
Detroit, in the territory of Michigan, was there recorded, and is duly authenti- 
cated. 

2. The deposition of David Delaunay, who swears he knows a Mr. Forsyth, 
at St. Louis, whose christian name he is ignorant of, but knows not the other 
plaintiff; that there was at Detroit, a mercantile house, under the firm of Kinsey 
& Forsyth, but he is ignorant whether Mr. Forsyth of St. Louis be one of that 
house; that he saw the defendant at Mr. Forsyth's in St. Louis, but does not 
know to whom he belonged. 

3. The deposition of Nicholas Girod, who swears that, while he was mayor 
of New Orleans, the defendant was brought before him, and confessed he was 
a runaway and belonged to some person, the name of whom the witness does 
not recollect, who had promised him his freedom. 

4. The deposition of A. B. Duchouquet, of St. Louis, who swore he never 
saw the defendant in the possession of the plaintiffs, because the plaintiffs 
lived at Peoria, in the Illinois territory; that the plaintiff, Forsyth, employed 
him in 1813, to stop the defendant; that he took him up in New Orleans and 
brought him before the mayor, where he confessed he had ranaway from the 
plaintiffs, and did not like to return to them on account of a wife and children 
he had in New Orleans. 

5. The deposition of Pierre Le Vasseur, who knew the defendant in Peoria 
in the Illinois territory, about ten years ago. He was known and reputed to 
be a slave; the witness knew him in the possession of Forsyth for four years. 
He ranaway from Peoria, about six years ago : the witness some time after met 
him at Mauportuis, in the Illinois territory, and the defendant said he was 
ranaway from his master and was going to St. Louis. 

On these facts the counsel contends that the slavery of the defendant and 
the property of the plaintiffs are fully proven. 

I. The evidence of slavery resulting from the color of the defendant, (Addle 
vs. Beauregard, 1 Martin 183,) from his declarations that he had a master, that 
he belonged to a man who had promised him his freedom, from his attempt to 
justify his unwillingness to return, by the circumstance of his having a wife 
and children in New Orleans, thereby tacitly admitting the obligation he was 
under of returning to the plaintiffs. 

II. The property of the plaintiffs is said to be proven by the bill of sale. 
The defendant's counsel shews that in the territories of Michigan and the 

Illinois, the only places, except New Orleans and St. Louis, which the defendant 
appears to have inhabited, slavery does not exist; that it is forbidden by law. 
The ordinance of congress of the year 1797 [1787], providing that "there shall 
be neither slavery nor involuntary servitude, in the said territory, otherwise 
than for the punishment of crimes, whereof the party shall have been convicted. 
Provided that any person escaping into the same, from whom labor or service 
is lawfully claimed in any one of the original states, such fugitive may be law- 
fully reclaimed, and conveyed to the person claiming his or her services as 
aforesaid." — Hence in the opinion of the counsel, a presumption arises that 
the defendant is free, which overweighs the contrary presumption which arises 
from the color. 

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It is further contended that as the bill of sale could convey no title, unless 
the defendant had been duly convicted of a crime, or in case he owed services 
in one of the original states, and had escaped into the Michigan territory, the 
plaintiffs are bound to bring the defendant within one of these two cases; that 
if the defendant was convicted of a crime, by which he became bound to in- 
voluntary services, the record of this conviction ought to be produced; so ought, 
in the other case, evidence of the duty of involuntary service, in one of the 
original states and of escape into the territory; that the apparent unlawfulness 
of the authority, exercised by the plaintiffs over the defendant, to which he 
may have submitted from his ignorance of his right or of the means of asserting 
it, is not repelled by his admission that he had a master, that he belonged to a 
person who had promised him his freedom. For while it appears that the 
plaintiffs de facto, though not de jure, kept the defendant for a number of years 
in servitude, it cannot seem extraordinary that he should refer to them by the 
appellation of his masters, and the alleged promise of freedom may well be 
presumed to have been made to allure the defendant into submission. Neither 
is it said, can the admission of the defendant, that he ranaway be received as 
conclusive evidence of a legal obligation to stay: flight from unlawful servitude 
being more generally resorted to, than the bold assertion of freedom. Kept 
for a number of years, perhaps from his birth, in bondage, the spirit of the in- 
jured negro is said to have been borne down, by the influence which long exerted 
mastery creates. 

We are of opinion, that as the case affords no evidence of any residence of 
the defendant, in any country in which slavery is lawful, this case must be 
determined by the laws of the country in which the defendant dwelt when he 
came to the hands of the plaintiffs — that the ordinance of 1787, having pro- 
claimed that slavery should not exist there, unless under two exceptions; the 
plaintiff[s] must bring the defendant under either of them, and having failed 
to do so, must have their claim rejected. 

Whenever a plaintiff demands by suit, that a person whom he brings into 
court as a defendant, and thereby admits to be in possession of his freedom, 
should be declared to be his slave, he must strictly make out his case. In this, 
if in any, actore non probante absolvitur reus. 

Here the plaintiffs have failed in a very essential point, proof of the alleged 
slavery of the defendant. 

Their title can only have been lawful, at the time the bill of sale produced 
was made, on two grounds: the right of the vendor, or the liability of the object 
of the sale, must have been absolute or qualified. Absolute, viz. complete 
ownership and slavery, in the sole case of conviction of a crime by which free- 
dom was forfeited. Qualified, viz. the right of reclaiming and conveying the 
defendant out of the territory into one of the original states, in which he owed 
involuntary servitude or labour. This qualified right could only exist in the 
case of the defendant's escape. 

Now, it cannot be contended that this qualified right only was disposed of: 
that, which is the evident object of the sale, is the absolute right to have and to 
hold during the natural life and to dispose as they please. The conduct of the 
plaintiffs, towards the defendant, shews that it was this absolute right which 

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Chicago's First Great Lawsuit 



they considered themselves as the purchasers of. This they unlawfully attempt- 
ed to, and did successfully for a number of years, exercise, till the defendant 
sought his safety in flight. Their title to him, if it exists, must be grounded 
on his conviction of a crime. Now the evidence of this, is a matter of record: 
the paper must be produced or accounted for. 

The parish court erred in sustaining the plaintiff's claim. Its judgment is 
therefore annulled, avoided and reversed, and this court doth order, adjudge 
and decree, that there be judgment for the defendant with costs. 

Morse for the plaintiff; Moreau for the defendant. 

"Thus," observes Quaife, "did the Supreme Court of the slave 
state of Louisiana uphold the free character of the soil of Illinois, 
and rescue a free man from bondage, at a time when slavery openly 
flourished here, and slaves were bought and sold and held in 
bondage even by such prominent characters as the governor of 
the territory." 5 

A recent thoroughgoing search of the records still preserved in 
Detroit shows no record of such bill of sale as was produced at the 
trial, though several other documents between 1800 and 1820 in 
which Kinzie and Forsyth were parties appear there. 

The great political question involved in the decision was not 
raised, namely: Did Congress have the power to agree to the Ordi- 
nance of 1787, when in 1789 it confirmed it during the first Con- 
gress under the Constitution of the United States and assumed to 
forbid slavery in territories of the United States? This question 
was one of the two great issues raised in the Dred Scott case, the 
other being, did Congress have the power to forbid slavery in that 
part of the Louisiana Territory north of the state of Missouri, as 
was done by the act of 1820, known as the Missouri Compromise? 

It is curious to trace the subsequent history of the Nash case and 
to find that it was cited on both sides by the judges in conflicting 
opinions. It is the earliest reported case, so far as appears, which 
involves the effect of the Ordinance of 1787. A number of cases 
subsequently arose in the border states north and south of the 
Ohio River, but until a later Kentucky case, 6 the decisions of the 
courts were almost uniformly to the same effect as the Nash case. 
As the political question developed and became acute, however, 
the Southern states reversed tjieir attitude and the trouble culmi- 
nated in the Dred Scott case and the Civil War. 



B Op. cit., 152. 

6 Graham v. Strader and Gorman, 5 Ben. Monroe's Reports, 173. 

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The first reported case in Louisiana in which the influence of 
Forsyth et al. v. Nash was shown was that of Elizabeth Thomas, 
F. W. C. (free woman of color) v. Generis et al., decided at New 
Orleans by the Supreme Court of Louisiana, in December, 1840. 7 
This case also arose in Illinois, and the facts and the ruling of the 
court are as follows: 

Plaintiff, who is a mulatto woman, and whom the defendant purchased as 
a slave, from one Vanlandingham, sues for her freedom. She alleges that she 
was born free; that by some means or other, Vanlandingham got possession 
of her when she was a child and conveyed her to Kentucky, where he held her 
in slavery until November, 1833, when she was carried to Shawneetown, in 
the State of Illinois, where she permanently resided, with the consent of her 
former master, until February, 1837; that she was taken to the parish of Jeffer- 
son, in this State, and sold by Vanlandingham to the defendant. She further 
states, that according to the laws of the State of Illinois, she was emancipated 
by her residence therein, even had she been a slave when she first entered the 
State. She prays for judgment, declaring her to be free. Defendant pleads 
that plaintiff is a slave for life, that he bought her for such from Vanlandingham, 
denies all the allegations contained in her petition, calls his vendor in warranty, 
and prays that he be dismissed, with costs, and for judgment against his war- 
rantor, as the case may turn out. The district court gave judgment in favor 
of the plaintiff, decreeing her to be free, and also gave judgment in favor of the 
defendant against his warrantor, for the price of the slave. From this judgment, 
the defendant and his warrantor both appealed. 

The evidence shows that the warrantor purchased the plaintiff as a slave, 
in the State of Virginia, in or about 1814; that he brought her to his farm in 
Kentucky, where she remained as a slave, until about the year 1832 or 1833: 
that plaintiff being then sick, wished and requested to be transported to Shaw- 
neetown, in the State of Illinois, to be there put under the care of an eminent 
physician, by whom she expected to be cured; that during the warrantor's 
absence, she was taken over to Shawneetown, within the knowledge and with 
the consent of his overseer; and that she resided in Illinois until the year 1837, 
when she was brought down to Louisiana, and sold to the defendant by the 
warrantor. It is also in evidence, that the warrantor had a house and store 
in Shawneetown, that his family resided there for some time, that plaintiff 
lived at her master's house in that place, and that the warrantor was there 
himself at various times. A respectable witness also swears that Vanland- 
ingham told him that plaintiff went to Illinois, with his (warrantor's) knowledge 
and consent. The constitution of the State of Illinois was produced in evi- 
dence, and by the art. 6, sect. 1, it is declared that "slavery or involuntary 
servitude shall not be thereafter (after 1819) introduced into that State," and 
by the second section of the same article, it is declared that "no person bound 
to labor in any other State shall be bound to labor in Illinois." Judge Scates, 
who was examined and gave his opinion as a lawyer on the above articles of 

1 16 Louisiana 483. 

r 130 1 



Chicago's First Great Lawsuit 



the constitution of Illinois, says, that, "in his opinion, a residence by a slave 
from another State, in Illinois, with the consent of the owner and slave, would 
never operate an emancipation of the slave, but if it were against the will and 
consent of the slave, she would become free immediately." He further gives 
it as his opinion that the consent or non-consent of the owner is immaterial; 
if the slave be held in involuntary servitude in Illinois, she becomes immediately 
free by the constitution; but that cannot be involuntary to which she consents, 
by the said constitution. He further says that there has never been any decision 
of the supreme court of said State upon the first and last cases stated in his 
answer, but that upon the other case of involuntary servitude, there are several 
decisions in favor of liberty, although they were restrained under indentures 
of service, which were held to be defective under the constitution. 

After some discussion of these facts and the law applicable, the 
Court quotes from one of its former decisions, as follows: 

The fact of a slave being taken to a country, where slavery or involuntary 
servitude is not tolerated, operates on the condition of the slave, and produces 
immediate emancipation. 

It then continues with its opinion: 

This question is now far from being new in our jurisprudence, and its solu- 
tion by us, in this case, depending merely on the facts shown by the record, 
must be in accordance with that of the inferior court. 

The opinion of Judge Scates, who was examined as a witness, and which is 
relied on by the appellants, however respectable it may be, must yield to the 
principle so well recognized by our laws that a slave has no will, and cannot 
give any consent; voluntary servitude, in the strict sense of the word, is un- 
known to us, and whenever an individual, who is not a slave, binds himself 
to labor for another, his consent becomes the subject of a civil obligation or 
contract. This court cannot regard any act, admission or consent of a person 
held in slavery, as operating to deprive him of a right to freedom. [Forsyth 
v. Nash] 4 Martin, 385. 

It is therefore ordered, adjudged and decreed, that the judgment of the dis- 
trict court be affirmed, with costs. 

The next time the Nash case was cited was in a famous and 
leading case decided by the Supreme Court of the United States, 
in 1847, entitled, Jones v. Van Zandt. 8 This was a suit brought 
in Ohio by a Kentuckian against a citizen of the former state to 
recover a penalty of $500 under the fugitive slave law of 1793 
for concealing and harboring his fugitive slave. The Court below 

8 5 Howard 215. 

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divided in opinion and certified the questions involved to the 
Supreme Court of the United States for decision. 

Salmon P. Chase, afterward chief-justice of the United States, 
was the defendant's counsel below, and in the Supreme Court at 
Washington there was associated with him, William H. Seward. 
Opposing them was J. H. Morehead, as counsel for the plaintiff. 
The chief questions submitted to the Court were : 

1. Is the fugitive slave law of 1793 in violation of the Constitu- 
tion of the United States? 

2. Is it in violation of the Ordinance of 1787? 

The Court unanimously held that the fugitive slave law was 
valid. It cited Forsyth et al. v. Nash, however, to the effect 
that the Ordinance of 1787 and the laws of the several states 
forbidding slavery were in full force as to non-fugitive negroes. 

The concluding paragraph of the opinion of the Court which 
follows the citation of Forsyth et al. v. Nash answers the political 
arguments made in the case, and that answer formed the basis 
for the rise of the Free Soil and Republican parties in which 
the eminent counsel took so great a part and through which they 
finally won a decision in their favor. 

Said the Court, by Justice Woodbury: 

Before concluding, it may be expected by the defendant that some notice 
should be taken of the argument, urging on us a disregard of the constitution 
and the act of Congress in respect to this subject, on account of the supposed 
inexpediency and invalidity of all laws recognizing slavery or any right of 
property in man. But that is a political question, settled by each State for 
itself; and the federal power over it is limited and regulated by the people of 
the States in the constitution itself, as one of its sacred compromises, and which 
we possess no authority as a judicial body to modify or overrule. 

Whatever may be the theoretical opinions of any as to the expediency of 
some of those compromises, or of the right of property in persons which they 
recognize, this court has no alternative, while they exist, but to stand by the 
constitution and laws with fidelity to their duties and their oaths. Their path 
is a strait and narrow one, to go where that constitution and the laws lead, 
and not to break both, by traveling without or beyond them. 

Two other cases decided in the Supreme Court of the United 
States about this time, in which the Nash case was not cited 
by the Court, nevertheless involved similar questions. The 
famous case of Prigg v. The Commonwealth of Pennsylvania 9 

9 16 Peters 539. 

[132] 



Chicago's First Great Lawsuit 



(1842) held that an act of the legislature of Pennsylvania for- 
bidding the removal of fugitive slaves from that state, for the 
purpose of enslaving them, was unconstitutional; and the case of 
Strader et al. v. Graham 10 that it was exclusively in the power of 
Kentucky to determine for itself whether the employment of 
slaves in another state should, or should not, make them free on 
their return to Kentucky. 

Meanwhile, the state of Missouri had been following the 
doctrine of the Nash case in a series of cases in which the facts 
were peculiarly similar to those which afterward arose in the 
Dred Scott case in the same court. The Supreme Court of 
Missouri in 1824 in the case of Winny v. Whitesides, 11 in 1828 in 
La Grange v. Chouteau, 12 in 1833 in Julia v. McKinney, 13 in 
1836 in Rachael v. Walker, 14 and in 1837 in Wilson v. Melvin, 15 
held the doctrine that taking slaves into Illinois or into Louisiana 
Territory north of Missouri, freed them and that the courts of 
Missouri, when such slaves were brought into that state, would 
declare them free. 

A brief history of the Dred Scott case may not be out of place. 
Scott's claim to liberty for himself, wife, and children was based 
on two facts. He had been voluntarily taken by his master, 
a surgeon in the United States army, to the United States military 
post at Rock Island in 1834 and held there as a slave until 1836; 
thence he was taken to Fort Snelling, Minnesota, then a part of 
Louisiana Territory north of the Missouri Compromise line, 
dedicated to freedom by the act of 1820. At the latter place he 
married a slave, similarly brought by her master, an officer in 
the United States army, from slave territory, and two children 
were born to them in free territory. Subsequently, the entire 
family was removed by its owners to Jefferson Barracks, near 
St. Louis, and Scott sued for his freedom, first in the state court. 
The case is entitled Scott v. Emerson. A verdict and judgment 



10 10 Howard 82. 

11 1 Mo 473. 

12 2 Mo 20. 

13 3 Mo 270. 
11 4 Mo 350. 
16 4 Mo 592. 



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in Scott's favor resulted, 16 and Doctor Emerson in 1852 appealed 
to the Supreme Court of Missouri. 

After the rise of the Free Soil party and the great Compromise 
procured by Henry Clay's dying efforts in 1850, in which the 
Missouri Compromise was practically repealed, a new fugitive 
slave law was enacted and the question of slavery was supposed 
to have been settled forever. The Supreme Court of Missouri 
was divided in opinion, two of the judges voting to reverse the 
judgment in favor of Dred Scott and the chief-justice dissenting. 
The decision not only reversed Scott's case, but also the entire 
series of previous decisions made by the same Court to which I 
have referred. The majority of the Court in its opinion uses 
this language: 17 

Cases of this kind are not strangers in our courts. Persons have been fre- 
quently here adjudged to be entitled to their freedom, on the ground that their 
masters held them in slavery in territories or States in which that institution 
was prohibited. From the first case decided in our courts, it might be inferred 
that this result was brought about by a presumed assent of the master, from 
the fact of having voluntarily taken his slave to a place where the relation of 
master and slave did not exist. But subsequent cases base the right "to exact 
the forfeiture of emancipation," as they term it, on the ground, it would seem, 
that it is the duty of the courts of this State to carry into effect the constitution 
and laws of other States and territories, regardless of the rights, the policy or 
the institutions of the people of this State. 

Then the Court says that the states of the Union, in their 
municipal concerns, are regarded as foreign to each other; that 
the courts of one state do not take notice of the laws of other 
states, unless proved as facts, and that every state has the right 
to determine how far its comity to other states shall extend ; and 
it is laid down, that when there is no act of manumission decreed 
in the free state, the courts of the slave states cannot be called 
to give effect to the law of the free state. Comity, it alleges, 
between states, depends upon the discretion of both, which 
may be varied by circumstances. And it is declared by the 
court: 

Times now are not as they were when the former decisions on this subject 
were made. Since then not only individuals but States have been possessed 



16 The decision in the lower court is not reported. 

17 15 Mo 576. 

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with a dark and fell spirit in relation to slavery, whose gratification is sought 
in the pursuit of measures, whose inevitable consequence must be the over- 
throw and destruction of our government. Under such circumstances it does 
not behoove the State of Missouri to show the least countenance to any meas- 
ure which might gratify this spirit. She is willing to assume her full responsi- 
bility for the existence of slavery within her limits, nor does she seek to share 
or divide it with others. 

Chief-Justice Gamble dissented from the other two judges, 
in the following language : 

In this State, it has been recognized, from the beginning of the government, 
as a correct position in law, that a master who takes his slave to reside in a 
State or territory where slavery is prohibited, thereby emancipates his slave: 
* * * These decisions, which come down to the year 1837 seem to have 
so fully settled the que[s]tion, that since that time there has been no case bring- 
ing it before the court for any reconsideration until the present. In the case 
of Winney vs. Whitesides, 18 the question was made in the argument, "whether 
one nation would execute the penal laws of another," and the court replied in 
this language, ("Huberus," quoted in 4 Dallas 375,) says, "personal rights or dis- 
abilities, obtained or communicated by the laws of any particular place, are 
of a nature which accompany the person wherever he goes." 

He further observed that in the case of Rachel v. Walker, the 
act of Congress known as the Missouri Compromise was held as 
operative as the Ordinance of 1787. 

While the Dred Scott case was pending in the Supreme Court 
of Missouri, Doctor Emerson, his owner, sold him and his family 
to a Mr. Sandford, a resident of New York, and after the case came 
back to the local court in St. Louis, it was agreed between the 
counsel for Scott and Sandford that because of the diversity of 
citizenship of the then parties to the suit a case should be begun 
in the United States Circuit Court, and that the case in the local 
court should await the decision of the one in the United States 
court. 

Chicagoans have an especial interest in the Dred Scott case 
since R. M. Field, the father of their famous fellow - citizens, 
Eugene and Roswell M. Field, was Dred Scott's counsel through- 
out the long litigation over his freedom, and by his self-sacrificing 
and persistent efforts laid the foundation for subsequent events of 
most momentous character. 



18 1 Mo 473. 

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Wisconsin Historical Society 

According to the agreement noted Dred Scott sued Mr. Sand- 
ford in the United States Circuit Court, for damages, because the 
latter held Scott and his family as slaves. This was the form of 
action usual for the purpose of asserting one's freedom. If the 
plaintiff recovered, the right of himself and the members of his 
family to freedom was thereby established. If he failed, he and 
they remained slaves. 

The result of the trial was that Scott and his family were denied 
their freedom. 19 The case was appealed and in the Supreme Court 
of the United States it was twice argued, and the opinion filed 
on March 6, 1857, two days after President Buchanan, in his 
inaugural speech, had foreshadowed the opinion as a basis for the 
belief that the slavery question would thereby be disposed of for 
all time. The opinion of the majority of the Court, each of the 
judges filing a separate opinion as was then usual in cases involv- 
ing constitutional questions, was to the following effect: 

1. The decision in the Kentucky case, 20 that the question 
whether or not Scott was a slave, was a local question, in which 
they would be governed by the decision of the Supreme Court of 
Missouri, even though that decision reversed a long series of con- 
trary decisions which for forty years had constituted the settled 
law of the state, was reaffirmed. 

2. That Scott, being a slave, was in no sense a citizen of the 
United States, though the Constitution provided that slaves 
should be represented in the lower house of Congress to the extent 
of three-fifths of their number in the apportionment of represent- 
atives, and the Constitution elsewhere referred to them as 
"persons held to labor." 

3. That Scott's removal to Rock Island by his master was in 
pursuit of his duties as an officer of the United States army and 
therefore not voluntary in the sense necessary to free Scott. 
That Fort Snelling to which place he was later removed was in the 
territory of the United States, and that the act of Congress in 
1820 forbidding slavery north of the Missouri Compromise line 
was beyond the power of Congress and unconstitutional, so that 
it availed Scott nothing toward his freedom. 

19 This decision is not reported, but it is referred to in the decision rendered 
somewhat later by the United States Supreme Court. 

20 Strader et al. v. Graham, 10 Howard 82. 

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Chicago's First Great Lawsuit 

The political effect of the decision is history. Our present in- 
terest is with the Nash case. Justice Campbell, in the opinion 
filed by him concurring with Chief-Justice Taney in the decision 
of the case, declared, among other things: 

that in general, the status, or civil and political capacity of a person, is deter- 
mined, in the first instance, by the law of the domicil where he is born; that 
the legal effect on persons, arising from the operation of the law of that domicil, 
is not indelible, but that a new capacity or status may be acquired by a change 
of domicil. That questions of status are closely connected with considerations 
arising out of the social and political organization of the State where they origi- 
nate, and each sovereign power must determine them within its own jurisdic- 
tion. 

He then cited the Nash case, among others, as authority for the 
following proposition: 

A large class of cases has been decided upon the second of the propositions 
above stated, in the Southern and Western courts — cases in which the law 
of the actual domicil was adjudged to have altered the native condition and 
status of the slave, although he had never actually possessed the status of free- 
dom in that domicil. 

One might suppose that with the final decision of the Dred 
Scott case in the Supreme Court of the United States, the course 
of Forsyth et al. v. Nash as authority was run. But the question 
of slavery, like the tail of the snake, lived even after the body was 
dead, and in 1871 this case was again cited as authority, this time 
in Osborn v. Nicholson, 21 a decision by the United States Circuit 
Court in and for the District of Arkansas, written by Justice 
Caldwell, who for forty years sat on that circuit. 

The case was one of many brought in that state and others to 
recover on promissory notes and other contracts given for the 
purchase of slaves before the war, against the payment of which 
the debtors pleaded the emancipation of the slave, and, in this 
particular case, the reconstructed constitution of Arkansas made 
in 1868, which expressly declared void all contracts of that char- 
acter. Bills of sale for slaves contained a covenant that the slave 
was a slave for life and it was pleaded that there had been a breach 
of this warranty so that the holders of notes could not recover. 

21 1 Dillon 219. 

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Wisconsin Historical Society 



Judge Caldwell was a very vigorous man, who always held 
strong views, and one can imagine the joy with which he cited in 
his opinion in this case the Dred Scott case in support of his view 
that the note in question was void. In the course of his opinion 
referring to the fugitive slave provision of the Constitution of the 
United States, he cited among others the case of Forsyth et al. 
v. Nash as indicating that "the courts uniformly held that if a 
master voluntarily permitted his slave to go into a free state, or 
attempted to travel with his slave through a free state, the slave 
was a free man the moment he entered the free state." Then after 
setting forth at length the extraordinary views of the Supreme 
Court of the United States announced in the Dred Scott case in 
support of the supposed sovereign power of the state of Missouri 
to deal as it pleased with slaves within its borders, he continued: 

A majority of the court maintained that the right of the state of Missouri 
over the subject of slavery within her borders was supreme, thus in effect, 
holding that this right was paramount to the obligations of a marriage contract. 

Now if this power of the states over the institution of slavery was so absolute 
and uncontrollable as to authorize them to destroy the obligation of the most 
sacred contract known in civil society, in the interest of slavery, it would be 
strange indeed, if they did not possess the power to annul slave contracts in 
the interests of freedom, humanity, and morality. It is a pleasing reflection 
to know that the law laid down in this celebrated case, and which was believed 
by many to be at variance with the rights of freedom, can now be quoted in 
support of, and is a full authority for, the "rights of the states" to abolish slavery, 
and obliterate all contracts relating to it. 

A. H. Garland, afterwards attorney-general under President 
Cleveland and formerly a member of the Confederate Congress, 
was plaintiff's counsel, while Judge Rose, a noted legal writer, 
represented the defendant. The case was appealed to the 
Supreme Court of the United States and there on April 22, 
1872, the decision of the lower court was reversed 22 under the 
authority of the Dartmouth College case, there being no power 
to impair the obligation of contracts and the alleged breach 
of warranty constituting no defense. The line which follows 
the decision of the Court has a pathetic significance. It is: 
"The Chief Justice [Chasel dissented in this case * * * " 

This constitutes the entire story of the monument of Jeffrey 
Nash. Whether or not John Kinzie was in anywise responsible 

22 80 U S (13 Wallace) 654. 

[1381 



Chicago's First Great Lawsuit 



for that fraudulent bill of sale and the deception of the Louisiana 
courts for which it was used in the dastardly attempt to make a 
slave of a free man, will perhaps never be determined. The 
discovery of the Nash contract with its relation to the Nash 
case, and the publication of the story prove that it is not 
always safe to honor the memory of a man even more than sixty 
years after his death; while the persisting influence of the wrong 
attempted to be done to Nash, in its effect upon those responsible 
for it, again proves the great truth written by Schiller in Pic- 
colomini, "It is the curse of evil deed that it must, constant, 
evil breed." 



139 



538 








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